Home » Publications » Inclusive Juries—Access for People Who Are Deaf, Hard of Hearing, Blind or Have Low Vision: Report (html) » 6. International obligations about the rights of people with disabilities

Inclusive Juries—Access for People Who Are Deaf, Hard of Hearing, Blind or Have Low Vision: Report (html)

  • Posted on May 16, 2023

6. International obligations about the rights of people with disabilities

We want a human rights model [for jury duty]; we don’t want a discriminatory model. We need to be assessed if we can do a task—not just subjected to people’s views on what we can and cannot do.[1] —Participant in the Blind Citizens Australia consultation

Overview

• Australia is a State Party to the United Nations Convention on the Rights of Persons with Disabilities (CRPD). The CRPD sets out the rights of people with disabilities and reflects international consensus and standards.

• The United Nations Committee on the Rights of Persons with Disabilities (the Convention Committee) has found that Australia is in breach of its obligations under the CRPD by failing to enable people with disabilities to serve on juries with reasonable adjustments.

• Victoria should act in accordance with the recommendations of the Convention Committee. Our recommendations in Part 2 of this report are guided by those findings.

Australia’s obligations under international law

6.1 Australia is a party to the seven core international human rights treaties, including the Convention on the Rights of Persons with Disabilities (CRPD).[2] The purpose of the CRPD is to:

promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.[3]

6.2 Human rights apply to everyone, including people with disabilities. The CRPD applies human rights specifically to people with disabilities. As Professor Ron McCallum said, the CRPD ‘does not grant us new human rights: rather, it recognises that for most of the world’s history our human rights, needs and aspirations have been ignored’.[4] Similarly, Alastair McEwin told us that ‘the CRPD is not creating new human rights but looking at [existing] human rights through a disability lens’.[5]

6.3 Australia ratified the CRPD on 17 July 2008 and was amongst the first nations to do so.[6] In ratifying the CRPD, Australia ‘joined other countries in a global effort to promote the equal and active participation of all people with disability’.[7] A total of 185 countries have now ratified and thus become States Parties to the CRPD.[8]

6.4 A body of independent experts—the Committee on the Rights of Persons with Disabilities (the Convention Committee)—is responsible for overseeing implementation of the CRPD.[9]

6.5 Australia is also party to the Optional Protocol to the Convention on the Rights of Persons with Disabilities.[10] The Optional Protocol enables individuals to make complaints directly to the Convention Committee if they feel that their rights under the CRPD have been violated.[11]

Implementation of the CRPD in Australia

6.6 Article 4(1)(a) of the CRPD requires States Parties to ‘adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention’.[12]

6.7 While ratification means Australia is bound to comply with the CRPD, its provisions do not form part of Australian law unless they are specifically incorporated by parliament into domestic legislation.[13] The CRPD is incorporated in a piecemeal way in Australia through legislation, policy and programs at the federal, state and territory levels and through various institutions.[14]

6.8 According to Professor McCallum, Australia’s ratification of the CRPD has ‘acted as a catalyst for the establishment of a national approach to fulfilling the needs and aspirations of persons with disabilities in Australia’, including Australia’s National Disability Strategy and the National Disability Insurance Scheme.[15]

6.9 Although it is Australia that is party to the CRPD, the Victorian Government has committed to comply with the CRPD in its new Inclusive Victoria: State Disability Plan 2022–2026 (see Chapter 7).[16]

CRPD rights relevant to inclusive juries

6.10 The Convention Committee has identified CRPD rights that are relevant to jury duty:[17]

• Equality and non-discrimination (article 5)

States Parties to the CRPD must prohibit discrimination on the basis of disability and guarantee equal and effective legal protection against indirect and direct discrimination on all grounds to persons with disabilities. The Convention Committee’s view is that Australia must take all appropriate steps to ensure reasonable accommodations are provided to persons with disabilities, including undertaking a ‘thorough and objective’ assessment of whether accommodations are reasonable.[18]

• Accessibility (article 9)

States Parties must take appropriate measures to ‘enable persons with disabilities to live independently and participate fully in all aspects of life’.[19] The Convention Committee views performance of jury duty as ‘an important aspect of civic life within the meaning of Article 9(1), as it constitutes a manifestation of active citizenship’.[20]

• Effective access to justice, including in relation to the provision of procedural accommodations (article 13)

The Convention Committee views performance of jury duty as an integral part of the Australian judicial system, and as such, it constitutes ‘participation’ in legal proceedings.[21]

• Freedom of expression and opinion, and access to information (article 21)The Convention Committee considers that ‘a juror is a person holding a public responsibility in the administration of justice in interaction with others, including other jurors and judicial officers, and that such interaction constitutes “official interactions”[22] within the meaning of article 21’.[23]

• Participation in political and public life (article 29)

In conjunction with article 13(1) (access to justice), the Convention Committee considers that attention must be given to ‘the participation of persons with disability in the justice system in capacities besides those of claimant, victim or defendant, including in jury service, on an equal basis with others’.[24]

Australia is in breach of the CRPD

6.11 The Convention Committee has considered four complaints from people who were not allowed to participate in jury service in Australia because they were deaf.[25] In all but one of the cases,[26] the Convention Committee’s view was that Australia was in breach of its obligations under international law. It held that reasonable adjustments should have been provided to enable the deaf complainants to serve as jurors.[27] The Convention Committee’s jurisprudence provides authoritative guidance on the content of those CRPD obligations. As a party to the CRPD, Australia has agreed to take steps to implement its provisions. While Australia cannot be compelled to remedy these breaches, it is obliged to respond to decisions of the Convention Committee (see below).

6.12 The Commission has been guided by the decisions of the Convention Committee in framing our recommendations.

The cases of Beasley and Lockrey

6.13 In Beasley v Australia[28] and Lockrey v Australia[29] the Convention Committee ruled on the cases of two people, both deaf, who had sought to serve on juries in New South Wales but were excluded because accommodations (Auslan interpreter or captioning) were not provided. The complainants were left without domestic remedies and therefore took their complaints to the Convention Committee.[30] We described these cases in Chapter 5 of the consultation paper.[31]

6.14 In Beasley, the Convention Committee held:

• The refusal to provide an Auslan interpreter or steno-captioning, without thoroughly assessing whether that would constitute a disproportionate or undue burden, amounted to disability-based discrimination in violation of Ms Beasley’s rights under article 5(1) and (3).[32]

• Article 9(1) was breached because Australia failed to take appropriate measures to ‘enable persons with disabilities to live independently and participate fully in all aspects of life’. The Convention Committee noted that jury duty is ‘an important

aspect of civic life within the meaning of article 9(1) as it constitutes a manifestation

of active citizenship’.[33]

• Australia failed to uphold article 21(b), which protects freedom of expression and access to information, including in ‘official interactions’ because Australia refused to provide Beasley with ‘the format of communication she needs to enable her to perform jury duty and therefore to express herself in official interactions’.[34]

• Refusing to provide an Auslan interpreter amounted to a denial of access to justice (article 13) in conjunction with the right to participate in public life (article 29(b)). The Convention Committee took a broad view of access to justice, noting that it should extend to the ‘participation of persons with disabilities in the justice system in capacities besides those of claimant, victim or defendant, including in jury service, on an equal basis with others’.[35]

6.15 The Convention Committee recommended that Australia enable participation in jury duty by providing ‘reasonable accommodation in the form of Auslan interpretation in a manner that respects the confidentiality of proceedings at all stages of jury selection and court proceedings’.[36] Additionally, the following steps were recommended:

• ensuring that every time a person with disabilities is summoned to perform jury duty, a thorough, objective and comprehensive assessment of their request for adjustment is carried out and all reasonable accommodation is duly provided to enable their full participation

• adopting the necessary amendments to the relevant laws, regulations, policies and programmes, in close consultation with persons with disabilities and their representative organisations

• ensuring that appropriate and regular training on the scope of the Convention and its Optional Protocol, including on accessibility for persons with disabilities, is provided to local authorities, such as the sheriff, and the judicial officers and staff involved in facilitating the work of the judiciary.[37]

6.16 Similar findings were made in Lockrey v Australia.

The case of JH

6.17 The most recent case regarding disability and jury service against Australia considered

by the Convention Committee arose in 2018, following the complaint of Perth resident,

JH, who was born deaf and uses Auslan.[38]

6.18 JH was summonsed to serve as a juror in the Western Australia District Court. She notified the Department of the Attorney-General[39] that she required an Auslan interpreter and provided the details of an interpreter booking service.[40]

6.19 The Manager of Jury Services excused JH from her summons because the court was unable to provide her with an Auslan interpreter due to:

1) the requirements of the Juries Act 1957 (WA);[41] and

2) the overriding necessity of affording a fair trial to the accused, including the preservation of secrecy of jury deliberations.[42]

6.20 The main rationale for this decision was ‘to provide a system that was fair to the accused and complies with applicable legislation’.[43]

6.21 Australia presented the following arguments to the Convention Committee about why this decision was reasonable:

• It ‘did not take a blanket approach’ in excusing JH from jury duty but considered her circumstances, enquired into her assistance requirements and, based on that information, determined that she was ‘not capable of serving effectively as a juror’ under domestic law.[44]

• The relevant domestic law ‘establishes a legitimate differential treatment of people who require an interpreter and thus is not discriminatory under article 5(2) of the Convention’.[45]

• The provision of an Auslan interpreter is not feasible in cases that involve non-verbal audio evidence, or are scheduled for many weeks, and that interpreters added complexity and cost to trials, as well as interfering with the secrecy of jury deliberations.[46] The provision of an Auslan interpreter was therefore considered not to be an ‘appropriate measure’ given ‘the overriding necessity to ensure a fair trial’.[47]

6.22 As in the Beasley and Lockrey decisions, the Convention Committee was not persuaded that the provision of an Auslan interpreter would amount to a ‘disproportionate or undue burden’. The Convention Committee noted that ‘Auslan interpretation is a common accommodation, largely used by Australian deaf people in their daily life’, and that JH ‘indicated to the State Party’s authorities how to book Auslan interpreters when she informed them about her hearing impairment’.[48]

6.23 The Convention Committee decided that Australia had not ‘taken the necessary steps’ to ensure reasonable accommodations were made to enable JH to serve. It concluded that:

the refusal to provide Auslan interpretation, without thoroughly assessing whether that would constitute a disproportionate or undue burden, amounts to discrimination on the basis of disability.[49]

6.24 The Convention Committee reiterated that Australia had not justified its concerns about confidentiality in jury deliberations, as these could be addressed by requiring interpreters to take a ‘special oath’ to preserve the secrecy of jury deliberations.[50]

6.25 Further, the Convention Committee again found that the denial of an Auslan interpreter resulted in a violation of JH’s right to freedom of expression and opinion in undertaking ‘official interactions’ involved in jury duty, amounting to a violation of article 21(b)

and (e).[51]

Australia’s responses to the United Nations decisions

6.26 Australia rejected the Convention Committee’s decisions in the cases of Beasley, Lockrey and JH. Australia ‘does not consider the provision of Auslan interpretation and stenography to potential jurors to be an appropriate measure to ensure accessibility’.[52]

6.27 The key practical concerns identified in Australia’s responses were:

• The presence of an Auslan interpreter would affect the ability of the jury to deliberate in secret, and it was possible that an interpreter may become an indirect/direct participant in deliberations, or influence their structure, flow or nature.[53]

• The impact of Auslan interpretation on the duration and complexity of trials, including:

a) the impact on continuity of proceedings due to the need to rotate Auslan interpreters[54]

b) delays to trials caused by providing reasonable adjustments, including:

i. the need for pre-trial preparation of the courtroom[55]

ii. additional practice and procedural requirements in the courtroom (eg the requirement for interpreters to rotate at regular intervals, and the need to modify pace of delivery)[56]

iii. the need for an assessment of any request for reasonable adjustments to take place after a juror is empanelled on a particular trial, delaying the start of the trial,[57] and

iv. the ‘added risk of non-sitting days where an interpreter is unable to attend (particularly in the context of the current skills shortage in this area)’.[58]

c) an Auslan interpreter would introduce an element of subjective interpretation because a deaf juror will not be able to make their own direct assessment of evidence, but would instead need to rely on the interpretation of the interpreter[59]

d) difficulties associated with interpreting complex technological evidence (e.g. body-worn video equipment; telephone intercepts)[60]

• The cost of providing reasonable accommodations, including Auslan interpreters[61] ‘with no certainty that a deaf juror would be ultimately selected’.[62]

Australia’s report to the Convention Committee

6.28 States Parties to the CRPD must deliver a report to the Convention Committee two years after ratification, and then every four years.[63] The reports detail how the country is implementing the CRPD.

6.29 Australia’s most recent report was made in 2018. Regarding access to justice, it referred to recent reforms in the ACT to ‘facilitate the provision of reasonable support to jurors with disabilities participating in the jury process’.[64] Australia also reported reforms in the Federal Court to ‘harmonise the regulation of the Court’s jury composition with the Convention’.[65]

6.30 In 2019, the Convention Committee’s concluding observations (in reply to the report from the Australian government) expressed concern about Australia’s treatment of potential jurors with disabilities, observing that:

only some states and territories have passed legislation to support the equal participation of persons with disabilities in the jury system, while the rest and the federal Government have not done so.[66]

6.31 The Convention Committee recommended that Australia ensure effective access to justice[67] through the development of legislation in all states to ensure ‘equal participation of persons with disabilities in the jury system’.[68] Australia should do this ‘in close consultation with persons with disabilities, through their representative organizations, [to] ensure effective access to justice for persons with disabilities, without any discrimination’.[69]

United Nations principles and guidelines on the rights of persons with disabilities

6.32 The 2020 International Principles and Guidelines on Access to Justice for Persons with Disabilities (the Principles and Guidelines) were issued by the UN Special Rapporteur on the Rights of Persons with Disabilities.[70] Their purpose is to guide states on how to remove barriers to justice for people with disabilities.[71] They specifically relate to access to jury duty and have therefore also informed the recommendations in this report.

6.33 Principle 7 concerns the rights of persons with disabilities to ‘participate in the administration of justice on an equal basis with others’.[72] This principle outlines states’ obligation to ensure that persons with disabilities can participate as jurors.[73]

6.34 The guidelines accompanying Principle 7 outline steps that the state and other authorities, including ‘judicial councils and other judicial governing bodies’, may take to facilitate the participation of disabled people on juries, including:

• removing all barriers, including legislation that prevents persons with disabilities from serving as jurors[74]

• ensuring that persons with disability can participate on an equal basis in the jury system by ensuring the provision of ‘all necessary support, reasonable accommodations and procedural accommodations’[75]

• strengthening reform strategies by collecting disaggregated data on persons with disabilities and participation in the justice system.[76]

6.35 States should also provide legally mandated training on the rights of persons with disabilities and provide accommodations to everyone with a role in the administration of justice.[77]

6.36 Having reviewed these Principles and the Convention Committee’s jurisprudence, Remedy Australia concludes that:

There can be no doubt, from treaty-body jurisprudence and the most authoritative interpretations of international law, that Australia’s obligation is to provide reasonable accommodations in our courts—including interpreters and steno-captioners—to enable people with disabilities to participate in our juries and public life on an equal basis with others.[78]

Community responses: Victorian laws should be reformed to respond to the recommendations of the Convention Committee

6.37 Community members told us that they want Victoria’s jury laws to be reformed so they are in line with international human rights laws. For example, a participant in our consultation with Deaf Victoria commented:

It is important that deaf/hard of hearing people can take part in the legal system and feel equal to the rest of the community. This is a human rights issue because deaf people have been excluded from the community for such a long time.[79]

6.38 The Castan Centre for Human Rights Law (Castan Centre) identified that the ‘issue of inclusive juries goes to the heart of what [the CRPD] stands for, including the fundamental values of equality, dignity and liberty’.[80] Many responses to the consultation paper called for reform so that our laws comply with international legal standards.[81] The Youth Disability Advocacy Service submitted:

Having ratified the Convention on the Rights of Persons with Disabilities, Australia is obliged to ensure that disabled citizens enjoy and exercise the same rights as every other citizen. This includes ensuring that disabled citizens can participate fully in all aspects of public life. By failing to provide adjustments to deaf and blind Australians to participate as jurors, Australia has violated the human rights of those excluded jurors and more broadly, its obligations under the Convention on the Rights of Persons with Disabilities.[82]

6.39 The Castan Centre highlighted that the UN cases ‘illustrate that the state of Victoria has obligations under international human rights law to enable the meaningful inclusion and participation of persons who are deaf and hard of hearing’.[83] It further identified that those decisions ‘provide tangible examples of what needs to change in order to comply with international human rights law, namely, change to law and practices that create barriers to participation and consultation with people with disabilities to guide reform’.[84]

6.40 The overwhelming community response was that concerns about cost, inconvenience and added complexity of removing barriers are outweighed by the need for jury service to reflect community standards about inclusion and equality.

Reforms would improve compliance with the CRPD in Victoria

6.41 Reforming Victorian legislation and practice to remove barriers to participation for people in the subject groups will be consistent with United Nations’ recommendations. The second part of this report makes recommendations that aim to address the practical concerns raised by Australia in response to the UN cases.

  1. Consultation 1 (Blind Citizens Australia).

    ↑

  2. International Covenant on Civil and Political Rights, GA Res 2200A (XXI), UN Doc A/RES/2200A(XXI) (16 December 1966); International Covenant on Economic, Social and Cultural Rights, opened for signature 19 December 1966, 999 UNTS 3 (entered into force 3 January 1976); International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969); Convention on the Elimination of All Forms of Discrimination against Women opened for signature 1 March 1980, 1249 UNTS 13 (entered into force 3 January 1981); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987); Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990); Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008).

    ↑

  3. Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008) art 1. Article 1 defines ‘persons with disabilities’ as ‘those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barries may hinder their full and effective participation in society on an equal basis with others’. This is known as the ‘social model’ of disability. For further discussion, see Chapter 1.

    ↑

  4. Ron McCallum, ‘“Nothing About Us Without Us”: National Responses to the CRPD Six Years On’ (Speech, The King & Wood Mallesons and Castan Centre Annual Human Rights Lecture, 22 August 2014) 2 <https://www.monash.edu/__data/assets/pdf_file/0010/140986/ron-mccallums-lecture-2014.pdf>.

    ↑

  5. Consultation 24 (Alastair McEwin AM, Royal Commissioner, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, in his personal capacity).

    ↑

  6. United Nations, ‘Chapter IV 15 Human Rights: Convention on the Rights of Persons with Disabilities’, United Nations Treaty Collection (Online Collection, 14 June 2022) < https://treaties.un.org/pages/Treaties.aspx?id=4&subid=A&lang=en >; Ron McCallum, ‘“Nothing About Us Without Us”: National Responses to the CRPD Six Years On’ (Speech, The King & Wood Mallesons and Castan Centre Annual Human Rights Lecture, 22 August 2014) 2 <https://www.monash.edu/__data/assets/pdf_file/0010/140986/ron-mccallums-lecture-2014.pdf>.

    ↑

  7. Council of Australian Governments, National Disability Strategy 2010–2020 (Report, 2011) 3.

    ↑

  8. ‘Status of Ratification Interactive Dashboard’, United Nations Human Rights Office of the High Commissioner (Web Page)

    <https://indicators.ohchr.org/>. This is correct as at 17 May 2022. Eight additional countries are signatories to the CRPD, making a preliminary endorsement of the treaty and demonstrating an intent to consider ratifying it. Just five countries have taken no action in relation to the CRPD.

    ↑

  9. Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008) art 34; ‘Committee on the Rights of Persons with Disabilities’, United Nations Human Rights Office of the High Commissioner (Web Page) <https://www.ohchr.org/en/treaty-bodies/crpd>. Professor Emeritus Ron McCallum AO, former Chairperson of the Convention Committee, observed that the ‘Committee marked a change in the representation of persons with disabilities throughout the United Nations (UN) bodies. Never before had so many persons with disabilities played such significant roles in the human rights treaty bodies system’: Ron McCallum, ‘“Nothing About Us Without Us”: National Responses to the CRPD Six Years On’ (Speech, The King & Wood Mallesons and Castan Centre Annual Human Rights Lecture, 22 August 2014) 6 <https://www.monash.edu/__data/assets/pdf_file/0010/140986/ron-mccallums-lecture-2014.pdf>.

    ↑

  10. Convention on the Rights of Persons with Disabilities , GA Res 61/106, UN Doc A/RES/61/106 (13 December 2006), Annex II Optional Protocol to the Convention on the Rights of Persons with Disabilities 2006.

    ↑

  11. The Optional Protocol was ratified by Australia on 21 August 2009 and came into force on 20 September 2009. It has been ratified by 100 countries and has 26 signatories: ‘Status of Ratification Interactive Dashboard’, United Nations Human Rights Office of the High Commissioner (Web Page) <https://indicators.ohchr.org/>. Correct as at 13 April 2022.

    ↑

  12. Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008) art 4(1)(a).

    ↑

  13. Kioa v West (1985) CLR 550, 570, (High Court of Australia, Gibbs CJ, Mason, Wilson, Brennan and Deane JJ, 18 December 1985).

    ↑

  14. For a detailed analysis see Ron McCallum, The United Nations Convention on the Rights of Persons with Disabilities: An Assessment of Australia’s Level of Compliance (Research Report, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, October 2020).

    ↑

  15. Ron McCallum, ‘“Nothing About Us Without Us”: National Responses to the CRPD Six Years On’ (Speech, The King & Wood Mallesons and Castan Centre Annual Human Rights Lecture, 22 August 2014) 3 <https://www.monash.edu/__data/assets/pdf_file/0010/140986/ron-mccallums-lecture-2014.pdf>. Article 33 requires countries to establish and designate a framework to promote, protect and monitor implementation of the CRPD.

    ↑

  16. Department of Families, Fairness and Housing (Vic), Inclusive Victoria: State Disability Plan 2022–2026 (Report, March 2022) 14.

    ↑

  17. The CRPD articles discussed below are those that the Convention Committee found were breached in the three cases brought by Australians who were deaf and were refused accommodations to serve as jurors (discussed in detail below).

    ↑

  18. Committee on the Rights of Persons with Disabilities, Views: Communication No 35/2016, 20th sess, UN Doc CRPD/C/20/D/35/2016 (31 August 2018) [7.4] (‘JH v Australia’). See also Committee on the Rights of Persons with Disabilities, General Comment No 6: Article 5: Equality and Non Discrimination, 19th sess, UN Doc CRPD/C/GC/6 (26 April 2018). The Australian Government acknowledges that ‘article 5 encompasses a prohibition on both ‘direct’ and ‘indirect’ discrimination. Direct discrimination occurs when individuals who are similarly situated are unjustifiably treated differently for a reason related to a prohibited ground, while indirect discrimination may occur when a law, policy or practice is neutral on its face but has an unjustified disproportionate impact on certain individuals for reasons related to prohibited grounds’: Australian Government, Background Paper on the United Nations Convention on the Rights of Persons with Disabilities (Part 1—Australia’s Position and Interpretive Approach, Prepared for Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, 16 June 2020) [21] <https://disability.royalcommission.gov.au/publications/australian-government-position-paper-uncrpd>.

    ↑

  19. For further information on the application of Article 9: see Committee on the Rights of Persons with Disabilities, General Comment No 2: Article 9: Accessibility, 11th sess, UN Doc CRPD/C/GC/2 (22 May 2014).

    ↑

  20. Committee on the Rights of Persons with Disabilities, Views: Communication No 11/2013, 15th sess, UN Doc CRPD/C/15/D/11/2013 (25 May 2016) [8.6] (‘Beasley v Australia’) ; Committee on the Rights of Persons with Disabilities, Views: Communication No 11/2013, 15th sess, UN Doc CRPD/C/15/D/13/2013 (30 May 2016) [8.6] (‘Lockrey v Australia’).

    ↑

  21. Beasley v Australia [8.9]; Lockrey v Australia’ [8.9].

    ↑

  22. Official interactions means dealings with official actors such as government officials. For further discussion, see: Valentina Della Fina, Rachele Cera and Giuseppe Palmisano (Editors), The United Nations Convention on the Rights of Persons with Disabilities:
    A Commentary     (Springer International, 2017).

    ↑

  23. JH v Australia [7.7]. See also Beasley v Australia [8.8]; Lockrey v Australia [8.8].

    ↑

  24. These rights should also be read in conjunction with the definitions found in Article 2 and the General Obligations set out in Article 4. They were analysed in relation to people with disabilities serving on juries in the cases of: Lockrey v Australia [8.9]; Beasley v Australia [8.9].

    ↑

  25. JH v Australia; Beasley v Australia; Lockrey v Australia; Committee on the Rights of Persons with Disabilities, Views: Communication No 12/2013, 13th sess, CRPD/C/13/D/12/2013 [2.4], [8.1]–[9] (‘AM v Australia’).

    ↑

  26. In 2013, Alastair McEwin, a deaf man who required an Auslan interpreter to undertake jury service, submitted a complaint to the Convention Committee, arguing that while he had never been personally selected for jury service, he ‘considers that the practice of the Sheriff of excluding deaf persons from jury duty is discriminatory, and would affect him should he be randomly selected to perform jury duty’. The Convention Committee decided that this case was inadmissible because he had never been selected for jury service, and therefore his complaint was ‘hypothetical and insufficient for the author to claim victim status within the meaning of article 1 (1) of the Optional Protocol’: AM v Australia [8.7].

    ↑

  27. In 2021, the Court of Justice of the European Union heard a case regarding a Bulgarian person who was excluded from working as a juror on a case because she was blind. Applying both the CRPD and European Law, the Court held that her complete exclusion was impermissible and that there should have been ‘an evaluation of her individual ability to perform her duties and … investigation of the possibility of rectifying any difficulties that may arise [by providing reasonable adjustments]’: TC, UB v Komisia za zashtita ot diskriminatsia, VA (Court of Justice of the European Union, Second Chamber, C-824/19, 21 October 2021) [56]. We note that jurors are paid employees in Bulgaria, unlike in Victoria where jury duty is a civic responsibility. However, the application of the CRPD by the Court of Justice of the European Union is in line with the Convention Committee’s interpretation of the CRPD, which informs our recommendations in this report. See also TC, UB v Komisia za zashtita ot diskriminatsia, VA (Opinion of Advocate General Saugmandsgaard Øe, Court of Justice of the European Union, C-824/19, 22 April 2021). For case commentary: see Lisa Waddington, ‘Komisia Za Zashtita Ot Diskriminatsia (HvJ EU, C-824/19)—No Blanket Exclusion of Blind Person from Being Employed as a Juror’, European Human Rights Cases Updates (Web Page, 14 January 2022) <https://www.ehrc-updates.nl/commentaar/211849>.

    ↑

  28. Committee on the Rights of Persons with Disabilities, Views: Communication No 11/2013, 15th sess, UN Doc CRPD/ C/15/D/11/2013 (25 May 2016) (‘Beasley v Australia’).

    ↑

  29. Committee on the Rights of Persons with Disabilities, Views: Communication No 11/2013, 15th sess, UN Doc CRPD/C/15/D/13/2013 (30 May 2016) (‘Lockrey v Australia’).

    ↑

  30. Under the Disability Discrimination Act 1992 (Cth) and the Anti-Discrimination Act 1977 (NSW) it was not unlawful to discriminate against them on the basis of disability in the ‘area of civic duties’ or ‘in areas of public life’, which includes jury duty; Beasley v Australia [7.3]–[7.4]; Lockrey v Australia [7.3]–[7.4].

    ↑

  31. Victorian Law Reform Commission, Inclusive Juries—Access for People Who Are Deaf, Hard of Hearing, Blind or Have Low Vision (Consultation Paper, December 2020) [5.23]–[5.27].

    ↑

  32. Beasley v Australia [8.3]–[8.5].

    ↑

  33. Ibid [8.6].

    ↑

  34. Ibid [8.7]–[8.8] This amounted to a violation of article 21(b) read alone and in conjunction with articles 2, 4, and 5(1) and (3) of the CRPD.

    ↑

  35. Ibid [8.9]. The Committee considered that the decision of the sheriff not to provide Auslan interpretation amounted to a violation of article 13(1) read alone and in conjunction with articles 3, 5(1), and 29(b) of the CRPD.

    ↑

  36. Ibid [9(a)].

    ↑

  37. Ibid [9 (b)].

    ↑

  38. JH v Australia [2.1].

    ↑

  39. This is the department in Western Australia that sends out the summons for jury duty.

    ↑

  40. JH v Australia [2.1].

    ↑

  41. Section 34G: General powers to excuse summoned people: (1) A judge or summoning officer may excuse a person under this section when he/she (e) does not understand spoken or written English, or cannot speak English, well enough to be capable of serving effectively as a juror; or (f) is not capable of serving effectively as a juror because he or she has a physical disability or a mental impairment, the judge or summoning officer must excuse the person from the summons.

    ↑

  42. Ibid [2.4].

    ↑

  43. Ibid [2.6].

    ↑

  44. Ibid [4.3]: see Juries Act 1957 (WA) s 34G(2).

    ↑

  45. JH v Australia [4.6].

    ↑

  46. Ibid [4.7].

    ↑

  47. Ibid [4.8].

    ↑

  48. Ibid [7.5].

    ↑

  49. Ibid: By failing to provide reasonable accommodations, Australia violated JH’s rights under arts 5(2) and (3) of the Committee on the Rights of Persons with Disabilities.

    ↑

  50. Ibid.

    ↑

  51. Ibid [7.7]. See arts 21(b) and (e) of the CRPD.

    ↑

  52. Australian Government, Response of Australia to the Committee on the Rights of Persons with Disabilities in Communication No 11/2013 (GB v Australia) and 13/2013 (ML v Australia) (Human Rights Communication, 24 October 2016) 8 [29]; Australian Government, Response of Australia to the Committee on the Rights of Persons with Disabilities in Communication No 35/2016
    (JH v Australia)     (Human Rights Communication, 11 February 2020) 1 [6].

    ↑

  53. Australian Government, Response of Australia to the Committee on the Rights of Persons with Disabilities in Communication No 11/2013 (GB v Australia) and 13/2013 (ML v Australia) (Human Rights Communication, 24 October 2016) 3 [10].

    ↑

  54. Ibid; Australian Government, Response of Australia to the Committee on the Rights of Persons with Disabilities in Communication No 35/2016 (JH v Australia) (Human Rights Communication, 11 February 2020) 4 [12].

    ↑

  55. Australian Government, Response of Australia to the Committee on the Rights of Persons with Disabilities in Communication No 11/2013 (GB v Australia) and 13/2013 (ML v Australia) (Human Rights Communication, 24 October 2016) 4 [16].

    ↑

  56. Ibid; Australian Government, Response of Australia to the Committee on the Rights of Persons with Disabilities in Communication No 35/2016 (JH v Australia) (Human Rights Communication, 11 February 2020) 4 [12].

    ↑

  57. The Australian Government further comments that: ‘While the Committee has recommended that the State party ensure a comprehensive assessment be carried out every time a person with disabilities is summoned to perform jury duty, in NSW jurors are not summoned for a particular trial – rather they are summoned for a particular court for a particular date. A number of potential trials could be ready to commence that day, so an assessment could not be made until the juror is empanelled and the specifics of that trial are known, delaying the start of the trial’: Australian Government, Response of Australia to the Committee on the Rights of Persons with Disabilities in Communication No 11/2013 (GB v Australia) and 13/2013 (ML v Australia) (Human Rights Communication, 24 October 2016) 4 [16].

    ↑

  58. Ibid 5 [16].

    ↑

  59. Australian Government, Response of Australia to the Committee on the Rights of Persons with Disabilities in Communication No 35/2016 (JH v Australia) (Human Rights Communication, 11 February 2020) 4 [12]. Similar comments were made in response to Beasley and Lockrey’s cases: Australian Government, Response of Australia to the Committee on the Rights of Persons with Disabilities in Communication No 11/2013 (GB v Australia) and 13/2013 (ML v Australia) (Human Rights Communication,

    24 October 2016) 3 [13]. See further discussion in Chapter 9.

    ↑

  60. Australian Government, Response of Australia to the Committee on the Rights of Persons with Disabilities in Communication No 11/2013 (GB v Australia) and 13/2013 (ML v Australia) (Human Rights Communication, 24 October 2016) 3–4 [12]–[13]; Australian Government, Response of Australia to the Committee on the Rights of Persons with Disabilities in Communication No 35/2016
    (JH v Australia)     (Human Rights Communication, 11 February 2020) 2–3 [9], 4 [12].

    ↑

  61. Australian Government, Response of Australia to the Committee on the Rights of Persons with Disabilities in Communication No 35/2016 (JH v Australia) (Human Rights Communication, 11 February 2020) 4 [10].

    ↑

  62. Australian Government, Response of Australia to the Committee on the Rights of Persons with Disabilities in Communication No 11/2013 (GB v Australia) and 13/2013 (ML v Australia) (Human Rights Communication, 24 October 2016) 4 [15].

    ↑

  63. Article 35 provides: 1. Each State Party shall submit to the Committee, through the Secretary-General of the United Nations, a comprehensive report on measures taken to give effect to its obligations under the present Convention and on the progress made in that regard, within two years after the entry into force of the present Convention for the State Party concerned. 2. Thereafter, States Parties shall submit subsequent reports at least every four years and further whenever the Committee so requests: Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008).

    ↑

  64. Committee on the Rights of Persons with Disabilities, Combined Second and Third Periodic Reports Submitted by Australia under Article 35 of the Convention (UN Doc CRPD/C/AUS/2–3, 7 September 2018) 27 [174]–[175] <https://digitallibrary.un.org/record/1663867?ln=en>.

    ↑

  65. Ibid [174]–[175].

    ↑

  66. Committee on the Rights of Persons with Disabilities, Concluding Observations on the Combined Second and Third Periodic Reports of Australia, UN Doc CRPD/C/AUS/CO/2-3 (15 October 2019) [25] (a).

    ↑

  67. Ibid [26]; Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008) art 13.

    ↑

  68. Committee on the Rights of Persons with Disabilities, Concluding Observations on the Combined Second and Third Periodic Reports of Australia, UN Doc CRPD/C/AUS/CO/2-3 (15 October 2019) [26].

    ↑

  69. Ibid.

    ↑

  70. United Nations, International Principles and Guidelines on Access to Justice for Persons with Disabilities (Human Rights Special Procedures, Special Rapporteur on the Rights of Persons with Disabilities, 2020). The Human Rights Council first established the mandate on the rights of persons with disabilities in 2014. This mandate was created to: a) Strengthen efforts to recognise, promote, implement and monitor the rights of persons with disabilities from a human rights-based approach, in line with the Convention of the Rights of Persons with Disabilities and the broader human rights framework; and b) Recall the universality, indivisibility, interdependence and interrelatedness of all human rights and the need for persons with disabilities to be guaranteed the full enjoyment of these rights without discrimination: ‘Special Rapporteur on the Rights of Persons with Disabilities’, United Nations Human Rights Office of the High Commissioner (Web Page) <https://www.ohchr.org/EN/Issues/Disability/SRDisabilities/Pages/SRDisabilitiesIndex.aspx>.

    ↑

  71. The Principles and Guidelines provide a ‘practical tool to support States in designing and implementing justice systems that provide equal access to justice for persons with disabilities, in line with international human rights standards’: United Nations, ‘International Principles and Guidelines on Access to Justice for Persons with Disabilities’, United Nations Human Rights Office of the High Commissioner (Web Page) <https://www.ohchr.org/en/special-procedures/sr-disability/international-principles-and-guidelines-access-justice-persons-disabilities>.

    ↑

  72. United Nations, International Principles and Guidelines on Access to Justice for Persons with Disabilities (Human Rights Special Procedures, Special Rapporteur on the Rights of Persons with Disabilities, 2020) 22, principle 7.

    ↑

  73. Ibid 22, principle 7.1.

    ↑

  74. Ibid 22, principle 7.2(b).

    ↑

  75. Ibid 22, principle 7.2(c).

    ↑

  76. Ibid 22, principle 7.2(e).

    ↑

  77. Ibid principle 10.2(a), 10.2.

    ↑

  78. Eliza Nugent, Preyasi Domun and De Alwis Winuri, Advancing Jury Inclusivity in Australia (Report, Remedy Australia, Castan Centre for Human Rights Law, Monash University, August 2021) 7–8.

    ↑

  79. Consultation 6 (Deaf Victoria and community participants).

    ↑

  80. Submission 12 (Castan Centre for Human Rights Law, Monash University) 11. Similar observations were made by Eliza Nugent, Preyasi Domun and De Alwis Winuri, Advancing Jury Inclusivity in Australia (Report, Remedy Australia, Castan Centre for Human Rights Law, Monash University, August 2021) 4.

    ↑

  81. Consultations 22 (Daniel Stubbs, Victorian Disability Worker Commissioner, in his personal capacity), 6 (Deaf Victoria and community participants); Submissions 2 (Dr David Squirrell), 9 (Madison).

    ↑

  82. Submission 3 (Youth Disability Advocacy Service).

    ↑

  83. Submission 12 (Castan Centre for Human Rights Law, Monash University).

    ↑

  84. Ibid.

    ↑

5. The slow road to inclusive juries
Hicaliber © 2024. All rights reserved.